September 3, 2016

Legality of Reliance’s Jio advertisement featuring Hon’ble Prime Minister Modi


On September 2nd 2016 (Friday), Reliance launched it’s one of the ambitious projects-Jio. Many of the leading newspapers i.e.The Times of India and the Hindustan Times provided a full (front page) jacket advertisement with Prime Minister Narendra Modi, dressed in a blue jacket, staring at them from under the words “Jio: Digital Life”-Dedicated to India and 1.2 billion Indians. 

For the purpose my analysis, I tried searching images of Hon’ble Prime minister of India Mr. Narendra Modi in Google. What I found is the current image which is used by Reliance for its ad Jio is an image of September 05, 2015, almost a year back. Prime Minister Narendra Modi, dressed in a blue jacket exactly that of the advertisement on September 2nd 2016. The article titles as “Technology with creative thinking can change lives: Prime Minister Narendra Modi”. 
Previously photo uploaded on Sep 05 2015


For the convenience, please find the following link. 


Tough the ad states that: “Our Prime Minister’s vision is inspiring vision of digital India is one such movement, “Jio is a dedication to that Digital India dream of the Prime Minister, his vision for the 1.2 billion people of India.” Though being a lawyer, I completely understand that Prime Minister of India does not directly relate nor promotes the company in any way. However, two questions arise in my mind. First, whether a private company or public company for the purpose can use images of Hon’ble prime minister of India in its advertisement. Secondly, if there is a violation of copyright. 

Though this act of Reliance is criticized in the social media, let me analyze it from a legal perspective. 

Section 3 of The Emblems and Names (Prevention of Improper Use) Act, 1950(“EN Act”), no person shall, except in such cases and under such conditions as may be prescribed by the Central Government, use, or continue to use, for the purpose of any trade, business, calling or profession or in the title of any patent, or in any trade mark or design, any name or emblem specified in the Schedule or any colorable imitation thereof without the previous permission of the Central Government or of such officer of Government as may be authorized in this behalf by the Central Government. (Emphasis provided) 

For the purpose, 9A of the Schedule states that: The name of the name or pictorial representation of 10 [Chaatrapati Shivaji Maharaj or] Mahatma Gandhi 11[or Pandit Jawahar Lal Nehru], 12[Shrimati Indira Gandhi] or the Prime Minister of India 1[except the pictorial use thereof on calendars where only the name of the manufacturers and printers of the calendars are given and the calendars are not used for advertising goods].] (Emphasis provided)

Reading Section 3 of the EN Act states that no person shall use or continued to use any name or emblem specified in the schedule for the purpose of any trade, business or in any intellectual property like patent, trade mark or design without prior permission from the Central Government. Schedule 9A of the EN Act clearly includes the name of Prime Minister of India.  Reading Section 3 along with the Schedule suggests that No one should use the name of Prime Minister of India without prior permission from Central Government for the purpose of any trade, business or in any intellectual property like patent, trade mark or design. However, there is a clarification which provides that the Image of Prime Minister of India can be used on the calendars where only name of manufacturers and printers of the calendars are provided and the calendar is not used for any advertising goods. 

The penalty as mentioned in the Section 5 of the EN Act states that, any person who contravenes the provisions of section 3 shall be punishable with fine which may extend to five hundred rupees.
Well, analyzing the advertisement from the EN Act perspective, though it seems that Reliance violated Section 3 of the EN Act. However, the clarification provided in the Schedule stated that Image of Prime Minister of India can be used on the calendars where only name of manufacturers and printers of the calendars are provided and the calendar is not used for any advertising “goods”. It states that the name of the Prime Minister of India cannot be used for any purpose of advertisement for any “goods”. The advertisement of Reliance was for the purpose of “Services”, which may take reliance out of the purview of the EN Act. 

It is to be seen if the Company have taken prior permission from the Central Government or have relied upon the loophole provided in the EN Act or have considered and ready to pay the penalty which is negligible.  

Secondly, copyright holder of the image may consider options under Indian Copyright Act, 1957.

Comments are Welcome.


August 30, 2016

Patent search and its importance


Patentability and other relevant searches are important for Patents. The quality and enforceability of a patent depends upon the initial search. If a search is conducted diligently, then it becomes convenient at the time of prosecution and enforcement. Hence a through search is a must before filing a patent. Also, multiple searches at different stages in the life of a patent are necessary.
  1.       Patentability/ Inventbility search
  2.       Freedom to Operate (FTO) search
  3.       Invalidity search
  4.            Infringement search
Patentability/Inventability search: This search is conducted to ensure of the subject matter of the patent is patentable or not. This is a global search. Patents, literatures, articles, journals, books and relevant documents are considered while making a patentability search. In India, Section 3 provides a list of inventions which are not patentable. This search is required at initial stages of research. Even if the inventions fulfill all the criteria of a patent, however, if the invention does not pass the patentability search then the invention cannot be patented. The main purpose of conducting this search is to ensure that the inventions are patentable or not.

Freedom to Operate (FTO) search: This search is conducted to ensure if the invention is infringing or encroaching upon someone’s patent and if there are prior arts to make the invention obvious. FTO search may also refer as right to use search. The purpose of this search is to ensure that companies avoid IP infringements prior to commercialization of any product or process. The FTO search includes a comprehensive patent search to identify and analyse un-expired patents and published patent applications that are present in the jurisdiction of interest.

Invalidity search: This search is conducted to invalidate patents of any third party.

Infringement search: This search is conducted to see if any third party is infringing one’s patent.